Town Square

Environmental group accuses town of illegal planning practices

Original post made
on Apr 3, 2012

Save Our Creek, a citizens group opposed to development at Magee Ranch in Danville, recently accused the town of Danville of illegally limiting voter approval of the controversial [Web Link SummerHill Homes] project.

Posted by Maryann Cella
a resident of Los Cerros Middle School
on Apr 3, 2012 at 11:20 pm

Danville's government continues to avoid the problem with SummerHill's proposed development: that a general plan amendment is LEGALLY NECESSARY in order to put a P-1 Planned Unit development on land designated for Agricultural use under the 2010 General Plan. Just because SummerHill has not "asked" for a General Plan amendment does not mean that one is not necessary! Our concern is that the Danville has joined SummerHill in ignoring the General Plan.

Why does SummerHill and apparently Danville not want to admit that a General Plan amendment is necessary for SummerHill's project to go forward? Because the General Plan amendment would require a PUBLIC VOTE pursuant to the voter-approved Measure S enacted in 2000. In the voter information accompanying Measure S, the Danville Town Council stated that "Measure S offers Danville residents a deciding voice in any proposed change to areas not planned for development." SummerHill's proposal is to build 64 homes on land designated for agricultural use, not residential development. It is obvious that Danville voters were led by Danville's Town Council members (2 of whom are currently on the Danville Council) to believe that in overwhelmingly passing Measure S they would get to decide whether a project like SummerHill's proposed for agricultural land would be approved.

Danville is also conveniently failing to mention that the Agricultural land proposed to be covered with 64 SummerHill homes and at least 15 second residential units is currently zoned A-4, Agricultural Preserve District (one home per twenty acres), which would allow for only NINE homes to be built on the 198 acres involved. SummerHill needs the Danville Town Council to approve a REZONING to A-2 (one home per 5 acres), in order to allow for the building of all the homes SummerHill proposes. Given the serious traffic, water, biology, and other environmental impacts that would follow from such a rezoning, Save Our Creek believes that it would be intolerably damaging to the property and quality of life of the thousands of residents in the Diablo Road corridor to allow such a rezoning. Thus, Danville should keep the Agricultural parcel in its current A-4 zoning.

The Town's response here is laughable. They say Measure S is not triggered because they are not proposing to change the land use designation from Agricultural to Residential, but are "merely" rezoning. That's precisely the problem, and it's exactly what is illegal! Their refusal to change the land use designation is their way of circumventing Measure S to deny Danville residents their right to vote!

Measure S was passed by Danville voters (74.4%) who wanted to protect Agricultural or Open Space land from further development. The Measure amended the Danville 2010 General Plan to require a vote of the Town residents if the Town Council proposed to develop such land. In fact, current members of the Town Council stated about Measure S:

"Measure S will enhance safeguards for the protection of open space and agricultural lands within our Town. The Measure ensures that any change in these areas would have to be supported by the community. … Measure S offers Danville residents a deciding voice in any proposed change to areas not planned for development. Danville voters would have to approve any change in use on … Agricultural … land." (Danville Town Council Members Mike Doyle & Newell Arnerich.)

This land is preserved for Agricultural use on the Danville General Plan. It's exactly the kind of land that Council Members Arnerich and Doyle were referring to when they described Measure S. And be careful! In our Town, there's lots of this kind of Open Space and Agricultural land right next to you!

Yet the Town now says it's ok to develop a major subdivision of 78 residential homes, and cluster 64 of those homes (many with second dwelling units) on land restricted for Agricultural use in the Danville General Plan without amending that plan (and conveniently avoiding your right to vote!) That's illegal.

The Town has to use a "P-1" zone (that's the "rezoning" they refer to in this article) to pack all those homes in a cluster on that Agricultural parcel. But the Danville 2010 General Plan clearly states that a P-1 zone cannot be used on land designated for Agricultural use. (Duh!) The P-1 zone is expressly incompatible with Agricultural use in the General Plan. And California State law states that zoning must be compatible with the General Plan. (California Government Code section 65860.)

So the Town is illegally proposing to place an incompatible P-1 zone of a clustered residential subdivision on land preserved for Agricultural use in the General Plan. They don't propose to amend the plan (which they are legally required to do) because that would give you your right to vote.

Folks, they already did this to Danville residents on the West side with the Elworthy Ranch project. That project put a major new subdivision of residential homes in a P-1 zone on Agricultural land, illegally, without amending the General Plan, and without giving you your right to vote and protect our Town.

If they do it on the west side (Elworthy), and they do it on the east side (SummerHill/Magee), they will do it anywhere. Don't let them ignore our General Plan and our vision for our Town. Don't let them destroy the communities and way of life we moved her for. Demand that Council Members honor their words regarding Measure S. Demand that they follow the law. Call and write your Council Members. You can find their numbers here:Web Link

And if they won't listen, sign up and support Save Our Creek. We're geared up, and we'll fight for our right to determine the future of our Town! We can use your signature, and we can use your donation. Learn more or support our work here: Web Link

All comments above are extraordinarily well-expressed. Anyone reading this article and living along the Diablo/Blackhawk Road corridor can only imagine how much worse an already grim traffic situation will become if the Summerhill project sees the light of day.

Posted by JRM
a resident of Vista Grande Elementary School
on Apr 4, 2012 at 7:35 am

Kudos to Ms. Cella and Mr. Gary for the time, effort and obvious thought put into this issue. I want to remind everyone that every Saturday a member of our town government is at the Farmer's Market and that would be an opportune time to advise them of your opposition to this development.

Posted by FanDanville
a resident of Danville
on Apr 4, 2012 at 9:34 am

Please understand that I am NOT against you......or your cause.
I am NOT taking any side here. (In fact, I am very concerned about the TRAFFIC problem that already exists and that will be exacerbated by this new influx of population.) So don't shoot the messenger.
However, in reading your logical/legal argument, I see a real possible PROBLEM with your argument.
I suspect that you are going to LOSE on the point(s) that you raise. That you are legally wrong. That you are IGNORING and DISCOUNTING the counter-points in the rebuttal argument that the Planner is providing you with.
I see you as BOLDLY and BELLIGERENTLY asserting that a General Plan Amendment must be REQUIRED. And it's a nice idea to try to force, but I'm suspecting that there is already lots of precedent law that supports the Planner's assertions that the "way the process actually operates" the Amendment requirement can be side-stepped. (You're claiming that the Planner is wrong....and will lose to you. But he's claiming the opposite. So who is correct?)
So I challenge you to think about this:
If you are going to lose in this legal argument, is there a way to determine that loss early on, so that you can put your effort into a different approach?
WHO is telling you that your arguments are legally sound? (Do they just want your money?)
Can they cite the LAW that they are standing on?
Can they cite law that clearly refutes the Planner's assertions about how the Amendment process is side-stepped?

I still think the TRAFFIC ISSUE and SCHOOL/PARK CROWDING ISSUE are big points of contention.

As a complete alternative approach, form a group to buy the land and then assert the "developer's rights" that you desire, such as to use the land "for grazing". Become ranchers.....or undeveloped-space owners.

Posted by Maryann Cella
a resident of Los Cerros Middle School
on Apr 4, 2012 at 10:17 am

To FanDanville: Mr. Gary and I are both lawyers and would not be supporting Save Our Creek's legal position if we did not believe it was sound. Moreover, Save Our Creek has hired an attorney that is expert in the field of General Plan interpretation and zoning, Dr. Stuart Flashman, to represent us. Danville's planner made the same arguments you see in the above Express article in a letter he sent to Dr. Flashman. Here is Dr. Flashman's reply to Danville:

"While the Town of Danville has some discretion to interpret ambiguities in its general plan, the general plan is unambiguous in not allowing P-1 zoning in areas designated for agricultural use ... The Town can't move forward with SummerHill's proposed P-1-zoned project without first changing the area's land use designation, and under Measure S that would require a vote of the people. If the Town continues on its current course, it will face a legal challenge from Save Our Creek."

What's at stake here, FanDanville, is much bigger than just the SummerHill project. As Andrew Jackson said in his Farewell Address, "eternal vigilance by the people is the price of liberty."
Government must not be allowed to circumvent the will of the people when it was so clearly expressed in Measure S: the people get to vote on projects requiring changes to agricultural land use designation. Period. Pretending that a project doesn't need such a change as a way to avoid an election is against basic principles of liberty.

Posted by Kristen Trisko
a resident of Green Valley Elementary School
on Apr 4, 2012 at 11:30 am

The members of Save our Creek have done their homework in their fight agaist this project. Their attorney is one of the best in this field of environmental law and I am sure would not make a statement challenging the town of Danville if he did not think he had a strong argument. Having challenged the Town on a previous development, winning 2 rounds in court, I know it can be done when your group has the law on their side. It would be so much better if the Town would just do the right thing from the very beginning, however and avoid any legal challenge. If they are set on allowing this development to go forward than they need to comply with Measure S and allow it's citizens to vote.

Posted by David Barlow
a resident of Danville
on Apr 4, 2012 at 11:54 am

This "Save Our Creek" organization is doing nothing more than trying to keep out potential neighbors and will use any guise such as "Save Our Creek" to do so. Make no mistake here as to what they really care about and that is to keep land owners from building wonderful and well planned communities here in Danville. We are 36-year residents of Danville and came here when Danville was just a small town......What if we had taken the kind of stand this group has to keep out new neighbors? These people now have their homes because long time residents like us did not object to them coming to our town and now these same people want to deny to others what they were granted-----We call that selfishness and please readers make no mistake about this---this is not about creeks or traffic but rather blatant disregard for the rights of others

Posted by Concerned in Danville
a resident of Danville
on Apr 4, 2012 at 11:59 am

I want to echo Ms. Trisko's remarks - Why isn't the Town doing the right thing here? Why is it fighting its residents' desire to limit development of agricultural land? Why is it not showing Measure S (a measure put forward by the Town Council) and its residents more respect? And now we learn that it circumvented Measure S when it approved the Elworthy Ranch project too??? Why would it do this on the Elworthy and SummerHill/Magee properties for the benefit of a landowner and developer rather than sticking up for what its voters want???? How many other times has it skirted the law or the will of the people to push something through the system? This represents a significant breach of the peoples' trust. It's about time we look more closely at what our Town and its council members are doing. Thanks go out to Save Our Creek for shining a light on this problem. Let's get behind them and make our elected officials accountable.

Posted by Michelle Erickson
a resident of Danville
on Apr 4, 2012 at 1:08 pm

Hi David. I think it is unfair to put forth such sweeping generalizations. We need to remember that Save Our Creek is not an "organization" but, rather, a community group comprised of more than 700 of your neighbors. As such, these individuals have a wide array of reasons for why they personally do not want to see the current SummerHill Homes application approved in its current form. As one of these members, I can assure you that my own opinion on the project has absolutely nothing to do with "keep[ing] out potential neighbors". Instead my concerns (at least at the beginning), were about traffic and capacity in our local schools. (Just look at the recent article on Danville Express about how school capacities were underestimated for the Shapell Home's/ Dougherty Valley development). Now, however, I want to make sure that this development is getting proper consideration from our Town and follows California State law, as well as the 2010 Danville General Plan.

I realize that your opinions may potentially be colored by your line of business  but name calling is simply counterproductive to any discussion.

Posted by David Barlow
a resident of Danville
on Apr 4, 2012 at 1:27 pm

Michelle:

I did not call you names but rather pointed out to the people of Danville that your cause is one based on your desire to keep out new neighbors----everyone knows that you want to keep Danville just as it is now that you are here and safely settled in. NIMBY is the word here and you know exactly what this is about. Property rights are very much a part of our economic freedom and you and your group are attempting to keep a property owner from building an approved and well designed development on his/her property.

I resent your charge that my line of business determnines the views of myself and my bride of 48 years---I have nothing to do with (and do not even know) the builder and am not in the construction or real estate business. Let the readers see this unfounded and reckless charge from you as another example of how far your group will go on this fight---including making false charges against those who disagree with you. While I was going to remain on the sidelines, your comment means I will be at every hearing and meeting held on this subject to express my views.

Posted by Michelle Erickson
a resident of Danville
on Apr 4, 2012 at 2:53 pm

David I heartily encourage you to be at all meetings and hearings on this subject. I think it is important to get a well-rounded view of the subject matter and these type of meetings offer a great opportunity to get information pertaining to all sides of the argument. My reference to name calling was in response to the fact that you called the 700+ members of Save Our Creek selfish. I am simply asking that you not "assume" that Save Our Creek is about stopping others from enjoying the wonderful town in which we live. I have never heard anyone offer that sentiment as a reason for their concern over this project.

And I sincerely apologize for my assumption that you may have opinions colored by your line of work. I clearly had you confused with someone else who is in the relocation business. Regardless, it was indeed a reckless and stupid charge to make - and I apologize.

As for property rights, people do NOT have the right to do whatever they want with their property. This is a fundamental fact. We live in a country that has federal, state and local laws as well as ordinances, restrictions and zoning in place to specifically protect the environment and property rights of others.

In this case, Danville is on a path to allow a change in the land use and zoning of Magee ranch that will irreparably harm the quality of life for many neighbors, as well as the Danville countryside that we so cherish.

Ultimately Magee ranch could easily be developed under its existing zoning classification. If SummerHill Homes wants to change the zoning of Magee ranch to accommodate easier development it needs to align with the land use designation for this piece of land. If not, the land use designation itself would need to be changed  in which case Measure S comes into play.

Posted by Miles
a resident of another community
on Apr 4, 2012 at 2:56 pm

Mr. Barlow:
I think you are making the right choice by vowing to appear at every hearing on this subject to express your views. However I would question the impact you would have when you make the statement "everyone knows". I think you just destroyed your credibility unless of course you have actually talked to "everyone" and they support your viewpoint; somehow I doubt that to be fact.
I agree property rights are very much a part of our economic freedoms but I believe it works both ways. Just as you support a property owners right to build an adjacent property owner has just as much right to protect their property interests. I think that is evident just by the fact we have building codes, planning departments and inspectors.

Danville is charming, clean, and civilized. But if you watch closely, you'll find that when Danville wants something enough, ethics, fair play, and legalities go out the window. These folks are well worth keeping an eye on.

Posted by David Barlow
a resident of Danville
on Apr 4, 2012 at 4:24 pm

Michelle:

Thanks for you apology and I too need to calm down----but when projects take years to get appproved and then, even after the approvals we have more mindless litigation, this simply runs up the cost of housing and this hurts all of us----other states are luring more and more companies out of California and this never-ending litigation, coupled with all the approvals needed to build anything, simply increases California's vulnerability.

I am in the relocation business---meaning I help move people all over the world; but as I said, I am not in the real estate or construction business and have no personal vested interest in this case but rather do have an interest in supporting the great Town of Danville when they have made a thoughtful and well-reasoned decision as they have here.

We are so pleased that there is such community interest and comments on this issue! Keep it up!! In order to ensure the quality life offered here, it is essential that we continue to oppose the SummerHill rezoning - an illegal maneuver. We have owned our property for 38 years (even longer than David) and are not opposed to legal development. We definitely do oppose the SummerHill development for the reasons expressed above.

And David.....Please travel on Blackhawk and Diablo Roads during school traffic and check out the creek erosion after heavy rains. You will learn first hand that your statement posted 3 hours ago is NOT factual. It is also inflammatory.

Posted by Disenfranchised by Danville
a resident of Green Valley Elementary School
on Apr 4, 2012 at 5:00 pm

David, you are not addressing the issue here: if Measure S and the Danville General Plan require a public vote on SummerHill's proposal, should Danville be allowed to ignore the public vote and approve the project? As a Danville resident, are you okay with that? How about if Danville changes the residential designation for the area around your home to a commercial designation without requiring a Measure S public vote. Would you be okay with that because Danville and the developer thought it was a great plan?

Posted by Geoff Gillette
a resident of Danville
on Apr 4, 2012 at 5:44 pmGeoff Gillette is a registered user.

Good evening,

Thanks for all the commentary on this topic. I've been following it through the day and spoke with Town Manager Joe Calabrigo and Principal Planner David Crompton about this before responding.

From Town Manager Joe Calabrigo:

An advocacy group called Save our Creeks has been formed in order to oppose a re-zoning application filed with the Town of Danville, by
SummerHill Homes.

By law, the Town is responsible for planning and land use controls within the Town limits. The SummerHill re-zoning application seeks approval to develop 78 homes and a minimum of 20 second (granny)
units on the 410 acre Magee property located south of Diablo Road and east of McCauley Road.

The SummerHill application seeks to re-zone the property to a P-1; Planned Unit District designation that would cluster homes in specific locations on the site, while setting aside the bulk of the site as permanent open space. P-1 zoning is appropriate for consideration in most of the General Plan land use categories identified in the Danville 2010 General Plan, including lands designated for Agricultural use.

Measure S, as approved by Danville voters in 2000, requires ultimate voter approval for any General Plan Amendment affecting lands currently designated for Agricultural, Open Space, or Public and Semi-Public use. The SummerHill application does not involve a General Plan Amendment request. Therefore Measure S does not apply.

A technical review of this application is currently ongoing. This includes preparation of a comprehensive environmental impact report (EIR) that addresses a full range of potential project-related impacts. The range of impacts to be evaluated was determined in part by public scoping sessions that were held before work began on the EIR. The application is also being reviewed for consistency with the Town's adopted General Plan and all other applicable Town ordinances, standards and requirements.

Once the technical review is completed, the EIR and the re-zoning application will be scheduled for public hearings before the Town Planning Commission, and then the Town Council. Extensive notification will be provided to property owners that live in the area, other interested parties that subscribe to the Town's agenda service, and other local, county and state agencies.

The Planning Commission and Town Council will consider all the technical information presented along with all public testimony and input provided at the public hearings. Once all interested members of the community have been heard, the Commission and Council will consider whether or not to approve, approve with conditions, or deny
the re-zoning application.

This is intended to be a very deliberate and inclusive process. Upholding the vision set forth in the Town's General Plan and ensuring that the character and quality of the community are retained is of utmost importance.

The Town will continue to provide factual updates on the status of this application. Please visit the Town website at www.danville.ca.gov, subscribe to e-News in order to receive agendas for upcoming Planning Commission and Town Council agendas, or contact Principal Planner David Crompton at 314-3349, for the latest updates on the status of this application.

Joe Calabrigo
Town Manager

I'd also like to quickly address the question about whether or not the Town had responded to Mr. Flashman's questions. The answer is yes, David Crompton responded on March 13, 2012 with much of the same information you're being given here today.

Posted by Green Valley and Los Cerros Parent
a resident of Green Valley Elementary School
on Apr 4, 2012 at 9:03 pm

Our family moved here in 2002 and our children attend both Green Valley and Los Cerros schools. The traffic along Diablo/Blackhawk and Green Valley/McCauley Road is horrendous; even with the school buses, we have seen very minimal improvement. Currently, if I attempt to travel by car from Oak Hill park to Green Valley School at approximately 3:00 pm, I can expect a 30 minute commute. I have seen a child get hit by a car at the Diablo/Green Valley intersection and my children have almost been hit. I cannot fathom how much worse it will be if this development is allowed to proceed. Are we willing to chance the human cost and further diminish our quality of life by allowing our town to disregard our right to a public vote? The fact that this battle even has to take place seems so senseless; allow the voters a right to choose whether or not this development proceed.

It is extremely shortsighted and dismissive for the Town of Danville not to consider how much the changes proposed by the Summerhill development would lower the quality of living for all of us in the area who would be impacted by traffic, overcrowded schools and other issues. In a time when many communities are looking at how they can bring in more "green" areas to make life healthier for young and old, Danville officials are hanging in the past where making money through taxes and fees is more important than preserving a healthy way of life. This is 2012 when development should be more closely scrutinized for what may be lost by its continuing. The Danville government has done a lot that is commendable in creating a lovely and charming small town environment, but they should think twice about allowing their need for funds to overrule the needs of the community now living in the area.

Posted by Discerning Diablo Resident
a resident of Diablo
on Apr 5, 2012 at 10:04 am

I have been sitting on the sidelines, weighing the pros and cons of the SummerHill Project for the last several months. It is clear from the facts, comments and rebuttal above that my support will go to the Save Our Creek organization. They have really done their homework and present a cogent, not inflammatory, case. I am going to the website, WWW.SAVE-OUR-CREEK.COM, to make a donation and sign the petition.

Posted by FanDanville
a resident of Danville
on Apr 5, 2012 at 10:58 am

Geoff,

I'm still confused about the exact issue being raised by this particular thread.
Why is it that a Rezoning Request that actually changes land use from Agricultural to P-1 is NOT considered to be "affecting Agricultural land" within the meaning of Measure S (and/or the General Plan) such that it is tantamount to (or requires) a General Plan Amendment and thereby requires a vote?
Changing land use from Agricultural to "x" seems to be what Measure S was all about. Can such "change" be exempted from Measure S scrutiny simply by labeling it (or initiating it) as something other than a General Plan AMENDMENT?
Has Danville received impartial legal counsel that convinces it that it must take this interpretation and action?

Here's a different question entirely, is there a point at which too much traffic (or too slow commute time) (or more population) will ever absolutely prohibit the approval of new development?

Posted by Maryann Cella
a resident of Los Cerros Middle School
on Apr 5, 2012 at 11:39 am

To Mssrs. Geoff Gillette, Joe Calabrigo, and David Crompton: In your discussion of the legality of using P-1 zoning on Agricultural land, you have failed once again to mention the clear Danville 2010 General Plan language stating what zonings are permissible on land with the Agricultural land use designation. Rather, you assert with no reference to the General Plan that "P-1 zoning is appropriate for consideration in... lands designated for Agricultural use." Saying that over and over again in your letters to Save Our Creek, your newspaper interviews, and elsewhere does not make it so. The General Plan, not unsupported statements, governs.

Readers: Please refer to page 52 of the 2010 Danville General Plan (available on the web) and look at the section entitled "Agricultural". That section states in no uncertain terms what zonings are permissible on land designated Agricultural:

"Zoning: The A-2 zoning district is consistent with the Agricultural designation."

Now, compare that to p. 45, where the General Plan states under the "Single Family-Rural Residential" land use designation section as follows:

"Zoning: Zoning designations of P-1 and A-2 are consistent with the Single Family-Rural Residential designation."

Indeed, ALL of the different RESIDENTIAL land use designations in the Danville General Plan list P-1 (apparently misprinted as "P-L) as consistent zonings. Omitting P-1 from the list of consistent zonings for land designated Agricultural means P-1 is NOT permissible on such land!

Therefore, because P-1 cannot legally be used on land designated Agricultural, SummerHill's proposal to rezone Agricultural land to a P-1 zone requires that the land first be redesignated to a land use that allows P-1 zoning, such as Single Family-Rural Residential. That land use redesignation triggers Measure S and will require a vote of Danville residents in order to occur.

Geoff, Joe, and David: Why do you continue to avoid the elephant in the room---p. 52 of the Danville General Plan? With such clear language in the General Plan, why side with SummerHill Homes and claim that Danville voters have no Measure S right to vote on SummerHill's proposal? Aren't the voting rights of thousands of Danville voters more important than SummerHill Homes' desire to avoid an election it undoubtedly believes it will lose?

While it is important to have a rational discussion about differing positions, one should always follow the money! Why would the developer want to alter the use of the land? Because they make a lot more money with a higher density use! Why would the City nuance the General Plan, and the application process? Because there is large amount of development and permitting fees to the City if this goes forward. We have seen this movie with different characters also i.e. County & State. Now you can go back to the discussion!

Mr. Barlow, your assumption begs the question: Has the Town made a "thoughtful and well-reasoned decision here," and would this major new subdivision in this traffic-bound corridor be a "wonderful and well-planned" community, or is the Town rather pushing through a pro-development agenda that disregards traffic, life safety, the environment, the rights of current residents, the Town's General Plan, and ultimately the law? It is the latter.

Please don't be fooled by the statements of Town spokespersons. I regret to say they are not being straightforward.

Danville's principal planner David Crompton says in this article: "We're not planning for development, but we know that the land, as it is, has some development rights and potential. We want to provide guidance for how that development should occur when the application comes in." Really? The Town received the development application for the subdivision in 2010, and has been acting on it ever since. The Town's own website says: "The proposed project consists of a development application by SummerHill Homes to subdivide an approximately 410-acre site into 85 single-family lots…" You can read the awful details here: Web Link

Danville's Town Manager Joe Calabrigo, speaking through Danville's Public Information Coordinator Geoff Gillette, comments above: "P-1 zoning is appropriate for consideration in most of the General Plan land use categories identified in the Danville 2010 General Plan, including lands designated for Agricultural use." This is blatantly false. The P-1 zone (through which they will cluster the homes on Agricultural land) is absolutely NOT consistent with an Agricultural land use designation under the Town's General Plan.

Here is the proof. While the language gets "legal," as you might expect, the principle is simple: You can't "zone" land preserved for agricultural use into residential development without first amending the General Plan.

Danville is required to have a General Plan by state law. Any zoning districts must be consistent with that General Plan under state law. (Cal. Gov't code § 65860.) The Town must deny approval of a subdivision tentative map if it is inconsistent with the General Plan. (Cal. Gov't code § 66474.)

"A key component of a general plan is a land use map indicating…land use designations and the specific land use restrictions that apply to each designation." (Danville 2010 General Plan, p.1)

"The land use designations are a set of official definitions for the land use types and intensities found in Danville. Each land use designation addresses the specific uses permitted…." (Danville 2010 General Plan, p.4)

"Descriptions of the specific designations in each of these land use types…indicate …the consistent zoning districts…." (Danville 2010 General Plan, p.43)

The General Plans specifically lists those zoning districts that are permissible in each type of land use designation. The P-1 zone is consistent with many commercial and residential land use designations, but not Agricultural. For example, the General Plan states:

"Single Family Residential-Low Density
Zoning: Zoning districts of P-1, R-40, R-20, and R-15 are consistent with the Single Family
Residential-Low Density designation."
However, for Agricultural land (which includes the land on which the Town proposes to cluster the vast majority of the subdivision homes for the SummerHill project), the P-1 zone is NOT permitted to be used:
"Agricultural
Zoning: The A-2 zoning district is consistent with the Agricultural Designation." (Danville 2010 General Plan, p.52)

Instead, the Agricultural designation is reserved for agricultural uses, and any other uses require a General Plan amendment:
"Description: [Agricultural] land use designation is applied to lands which are currently under Williamson Act Contract or in agricultural use. Agricultural uses, including grazing, are permitted and encouraged. In the event that Williamson Act contracts for sites with this designation are not renewed, General Plan amendments to permit other uses may be requested." (Danville 2010 General Plan, p.52)

Simply stated, they can't put a P-1 zone on Agricultural land without first amending that land use designation. Even the Town's zoning regulations for the P-1 district make clear that the P-1 district must be consistent with the General Plan:
"32-63.1 General. … Intent and Purpose. … The planned unit P-1 district is intended to … ensure substantial compliance with the General Plan…."
"32-63.2 Uses. … Uses. The following uses are allowed in the P-1 district: Any land uses permitted by an approved final development plan which…are consistent with the General Plan;
" 32-63.5 Rezoning. … Rezoning and Development Plan Application. … [T]he application for rezoning to P-1 district…consists of each of the following: … A statement of how the proposed development conforms to, and is consistent with the general plan…."
Not under state law, not under the General Plan, not under the zoning regulations, can the Town rezone this land to a P-1 to accept the residential cluster homes and approve this subdivision, without first amending the General Plan to designate the land for residential use. If the Town amends the General Plan, we get to vote on it under Measure S, the law designed to protect Agricultural land from being converted to residential development without first securing voter approval. If the Town doesn't amend the plan, as they are currently stating they can do, and thereby circumvents Measure S and our voting rights, they are acting illegally.

Posted by Dan Reynolds
a resident of Diablo
on Apr 5, 2012 at 11:02 pm

I'm not necessarily in favor of the development, but I do believe in some aspect of property rights and I agree that the town does not need to bring this rezoning to a vote. I don't believe the town is for this development - but they have to treat the application fairly for the applicants. I do have a couple of points:

- The traffic issue that is most commonly referred to is the backup at the stop sign at Mt. Diablo Scenic/Blackhawk/Diablo. This intersection is under the jurisdiction of Contra Costa County. The town of Danville does not control it and cannot make any improvements at that intersection. However, that would be a great intersection for a round-a-bout, which would serve as a great entrance to Mt. Diablo and alleviate the backup. But the ownership is very complicated and would make it difficult to do anything there (Athenian, residences, the State Parks, and the County all own pieces of it).

- The traffic issue is, I believe, almost entirely caused by the schools in the area, as there is not a problem at other times of the day. Are people asking the schools to come up with solutions to the current problem? Busses have helped, but they could still adjust start times, encourage carpooling, or maybe discuss other creative ideas like staffing the intersections with human traffic controllers for an hour in the morning.

- Many people against the development live directly across the creek from it and their views will be greatly impacted. I looked at a couple of those houses when buying my house and, while appreciating the great view, knew that such a nice flat piece of land wouldn't stay undeveloped forever, so I passed on them.

- I can't speak much about the creek erosion issue, but I have faith that the town and flood control agencies know what they're doing. There are no negative examples that I know of in the area.

Signs against the development are posted at the entrance to my neighborhood. I'd like everyone to know that they do not necessarily represent everyone that lives in the area.

If you would, since you have seen fit to make the assertion here, please cite your authority, specifically and concretely (with page-line citation), to either state law, the Danville General Plan, or Danville zoning regulations, for your assertion that: "P-1 zoning is appropriate for consideration in ... lands designated for Agricultural use." You might also explain why the General Plan's explicit specification that only A-2 zoning is consistent with Agricultural land use (p. 52) does not belie your assertion.

If Town Planners can place any zone on any land use designation, regardless of specifications in the General Plan to the contrary, and thereby approve any kind of development on any kind of land at their whim or caprice, without amending the General Plan, Measure S will NEVER be triggered, and the Town's General Plan will be rendered meaningless.

Posted by Parable The Terrible
a resident of Danville
on Apr 5, 2012 at 11:16 pm

Once upon a time, there existed a wonderful village, which had many cattle. Over the years, the village grew, and to fuel its growth, the villagers slaughtered the cattle until they found themselves with only three left.

The villagers, now greater in number, grew hungry. A few of them became concerned, and with much noise and petulant grumbling, questioned the need to slaughter one of the three remaining cattle. "Our cattle are part of our character," they moaned, "and where does that leave us if we kill a third of the herd?" "Nonsense," replied the others. "We'll still have two left--enough to breed--and as long as we slaughter it humanely and according to our rules, then we have nothing to fear. Besides, we only need the good parts--the meat and the skin, and we'll leave you the skeleton, which still very much looks like the animal, so that you might have something with which to remember it."

And so they slaughtered it. They killed it humanely, in strict accordance with the village rules; the animal did not suffer. They brought in a reputable butcher from out of town, who carved it up and made a great meal from its fine cuts of juicy meat, and they made some fashionable belts and handbags from its skin. To the dissidents, they gave the bones, and they constructed a statue of the animal's skeleton in the town square so that everyone might remember it.

But time passed, and the village grew, and the villagers grew even hungrier. "We must feast on another one!" they cried. "We'll still have one left, so we can retain our character, and the belts and handbags will be good for our prosperity." The dissidents, weary from their first battle, and somewhat hungry themselves, objected little. So the villagers slaughtered it, and made a great feast that night, and constructed another statue from its bones.

And soon the villagers, even greater in number and hungrier still, chose to kill the last of their cattle. By then, nobody objected; the animal had become a relic of times past, and such was the desire for fashionable belts and handbags that its slaughter was immediately warranted. There wasn't room for another statue in the town square, which had shrunk to accommodate the town's growth, so they threw the bones away. And the villagers spent their remaining years satisfying their hunger with finely textured lean beef product supplied by the giant factories nearby.

Where is Danville Mayor Andersen during all of this? We know she is very busy campaigning for supervisor, and raising money for her campaign, but where does she stand on this issue? If we can not trust her to be prudent, honest, and accessible about this very important issue in her own backyard, why would we trust her to be supervisor of the entire county?

I would encourage EVERYONE who is against this illegal development in our town to vote against Danville Mayor Andersen in her election for county Supervisor, as she has shown her true colors during this very important issue for our town.

In all fairness, it occurs to me to make a critical distinction between Town Council Members, on the one hand, and Town planners and staff, on the other. Town Council Members have not voted on this project, as it has not officially come before them for a vote. (They did vote to approve the Elworthy Ranch project.) Town planners and staff, on the other hand, have expressly stated in writing that they will use A-2 to calculate density, and that they can cluster this subdivision in a P-1 zone without amending the General Plan land use designation for the Agricultural property, thereby avoiding a Measure S vote. It's time for our Council Members to reign in staff, and get them back on the straight and narrow. We don't want a rogue Town. Again, you can contact your Council Members here: Web Link
Tell them to stop this train wreck.

Posted by Geoff Gillette
a resident of Danville
on Apr 6, 2012 at 1:05 pmGeoff Gillette is a registered user.

Good afternoon,

There has been a lot of good discussion regarding this issue, but there seems to be some misapprehension on a few areas and I would just like to touch on those.

1. The development application is Town-driven: The owner of the parcel and the developer SummerHill Homes are the applicants in the case. A property owner has the right to request development, rezoning or other changes affecting their land. By law, the Town has to review the application, giving it all due consideration. This means gathering information, conducting studies and holding public hearings.

2. The Town is trying to develop land for the generated revenue: While it is true that the Town derives revenue from homes built in a development, the overall amount of revenue is only a small percentage of the Town's annual revenues and is balanced by the increased cost to the Town for maintenance, police and other Town services.

3. The development application has already been approved or is ready to be approved: Nothing could be further from the truth. This is still very early in this process, with a draft environmental impact report (EIR) still to be completed. That means there is still the majority of the process to go through, which would include a public hearing on the EIR over the summer, and public hearings before both the Planning Commission and the Town Council in the first quarter of 2013. All of those meetings are publicly noticed, and the agendas for all of those meetings are available by subscribing to the Town's e-News subscription service. We encourage residents to read the documents and attend the public hearings as citizen engagement is a valuable part of the process.

As Town Manager Joe Calabrigo stated Wednesday, the Town is working to make this process factual, transparent and inclusive. Interested residents have many avenues of communication available to them, including the Town website, e-News, Facebook, Twitter, e-mail and telephone. We are always open to suggestions for other methods of communication.

In regards to comments that have been made regarding the legal interpretations of the development application: The Town has carefully reviewed Save Our Creek's legal opinion regarding the applicability of Measure S and disagrees with that opinion. And while the merits of clustering development on one portion of the property will undoubtedly be discussed in the review of the project, the General Plan does encourage clustering to preserve more open space.

I hope this has helped clarify the situation. Questions on the process can be answered by Principal Planner David Crompton at (925) 314-3349 or at dcrompton@danville.ca.gov.

On 1), isn't your statement a bit disingenuous? Doesn't the Town have big bucks at stake in meeting ABAG's affordable housing allocation - hence the Town's clear record of approving development applications at the highest possible density, and with all those "second dwelling units" (which qualify as "affordable")? I'm not saying we shouldn't meet our allocation of housing from ABAG, but let's be honest about the Town's interests in approving as many development applications as it can, and at the highest density it can justify (and some it can't).

On 3), the development application has not been heard by the Council yet, true. But it is also true that the Town planners have unequivocally stated in writing that they will calculate the density for this development at the A-2 level (despite its current A-4 zoning), and that they believe the project can move forward as proposed, with 64 homes plus a minimum of 16 second dwelling units clustered in a P-1 zone on land designated for Agricultural use, without changing the land use designation through a General Plan amendment. At least you're encouraging residents to become involved, and wake up and smell the coffee (or something less pleasant).

On your last paragraph, the Town disagrees with the opinion? Fact: "The land use designations are a set of official definitions for the land use types and intensities found in Danville. Each land use designation addresses the specific uses permitted…." (Danville 2010 General Plan, p.4). "Descriptions of the specific designations in each of these land use types…indicate …the consistent zoning districts…." (Danville 2010 General Plan, p.43). "Agricultural: Zoning: The A-2 zoning district is consistent with the Agricultural Designation." (Danville 2010 General Plan, p.52). Zoning districts must be consistent with the General Plan under state law. (Cal. Gov't code § 65860.) The Town must deny approval of a subdivision tentative map if it is inconsistent with the General Plan. (Cal. Gov't code § 66474.) There's no "opinion" about it!

And please don't insult Danville voters by playing sleights of hand. This is NOT a debate about clustering. The Town can cluster to its heart's content on land designated for Residential use in the General Plan, or if it changes the land use designation of this Agricultural parcel to Residential.

Since the General Plan and state law are SO CLEAR that you can't put a P-1 zone on this land, why wouldn't the Town simply change the land use designation to make it consistent? Hint: Because then Danville residents would get to vote on it under Measure S.

Town planners should be ashamed of themselves! Play it straight! If you're going to convert Agricultural land to a major residential subdivision with clustered homes, amend the General Plan to make the land use consistent, and give the Danville residents (for whom you work!) their right to a vote on the change!

Posted by Maryann Cella
a resident of Los Cerros Middle School
on Apr 6, 2012 at 11:35 pm

The illegal course of action Danville is planning shows no regard for the law or for Danville residents.

Recently, a citizen's group called Citizens for Civic Accountability was forced to sue Danville to compel the preparation of an Environmental Impact Report for the 22-home Weber Ranch subdivision. CCA won and Danville had to prepare that EIR.

If Danville fails at the appropriate time to schedule a public vote pursuant to the requirements of Measure S, Danville residents will have no recourse but to ask a Court to oblige Danville to obey the law.

Ironically, should that lawsuit be necessary, Danville will likely use tax dollars from those residents to hire expensive outside legal counsel to argue that those same residents do not have the right to vote on SummerHill's ill-conceived proposal!

Do the right thing, Danville! Show respect for the law and the taxpayers!

Mayor Andersen has done NOTHING to stop her town employees from Iillegally allowing this illegal development! She is more concerned with her campaign for Supervisor than the concerns of those affected by this illegal development. If you are against this illegal development, call her campaign headquarters and let her know you will NOT vote for her for supervisor.

As attorney Todd Gary noted, the town is legally required to put this to a vote of us citizens. Mayor Andersen ignores the law and is trying to let the developer get away with this. We need a supervisor who listens to the concerns of the people and respects the rule of law, not one who is looking out only for the developers.

Again, in the interests of fairness, this project has not officially come before the Council Members (including Anderson) for a vote. Nor can they predetermine the project before it does come before them.

However, Council Members can and should look into what their staff are doing generally in development planning -- specifically, taking the positions that a P-1 zone can be placed on land designated for Agricultural use, and that A-4 zoning magically changes to A-2 when a preserve contract expires. These positions are contrary to state law, the general plan, and Town zoning regulations. And staff have already used them in other developments (e.g., Elworthy Ranch). Although these issues are implicated in the SummerHill project, they are not exclusive to that project, and Council should reign this illegal practice in.

Town Council Members should be concerned about their staff getting the Town embroiled in expensive litigation. They can and should be looking into this and doing their own independent due diligence rather than simply taking staff "opinions" (or those of the developer) as gospel. They should be obtaining neutral disassionalte legal analysis on the issue. (Town attorney Rob Ewing doesn't count.)

And keep this in mind. If they do approve this project on this basis, and they lose the resulting lawsuit (which I firmly believe they will -- I don't think the staff's position on this is even colorable), then it will be too late to deny or even amend the project. They will have committed to holding an expensive election on the land use change under Measure S, at taxpayer expense. So they are buying both a lawsuit AND an election. At that point, I doubt voters would take kindly to the project, and will likely vote it down. So in the end, for the cost of a lawsuit and an election, the Town gets no project at all.

In short, the time for Council Members to think carefully and independently about this, and to guide the Town's path, is NOW, not later. Later is simply very expensive and wasteful.

Also, I highly doubt voters will look kindly toward Town Council Members who denied Town residents their entitlement to a vote under Measure S, forcing residents to take the Town to court, and only giving Town citizens that vote after a Court forces them to do so. I'm not a plitical expert, but that strikes me as political suicide.

So, Council Members, please -- think about this and do what's obviously right, not what staff hope they can get away with. Danville residents won't let that happen.

We are so very grateful to have the expertise and commitment of attorneys Todd Gary and Maryann Cella in helping us fight the illegal attempt to force SummerHill Development upon our community. Thank you  THANK YOU  THANK YOU!!!

Posted by Maryann Cella
a resident of Los Cerros Middle School
on Apr 9, 2012 at 1:13 pm

To "Dan Reynolds" : You admittedly know nothing about what effects the SummerHill project is going to have on Diablo Road corridor property owners. Yet you disagree with signs you have seen pointing to property owners' legitimate concerns over the SummerHill project's impacts. Why side with SummerHill Homes, Dan, over existing Diablo Road corridor homeowners that are protecting THEIR property rights?

Your blind faith in Danville and flood control agencies is naive. Just to name a few examples showing that your faith is demonstrably misplaced:

1. The hydrology report that was supposed to (as a Danville Council condition of approval) have been prepared by Danville for the existing Magee Ranch development was apparently never prepared, or if it was, it was lost.

2. There were no studies of flood/erosion impacts ever prepared by Danville or the County Flood Control agency for the hundred or more homes located in the Diablo Creek Place, Woodcreek, and Still Creek areas. All those homes were built with no regard to the fact that all properties downstream along Green Valley creek in Danville and Diablo are in a FEMA Flood Zone!

3. Danville has already spent thousands of dollars shoring up a section of Diablo Road south of Diablo where Diablo road was collapsing into the eroded creek. Yet Danville is proceeding with apparent intent to approve a project that will considerably worsen erosion and potential for flooding.

4. Have you noticed the $1 million project Danville is currently doing to shore up the Diablo Road/El Pintado Road bridge and sidewalk? How about the tens of thousands of dollars just spent by Danville to rebuild the bridge over Green Valley Creek in Woodbine? Unfortunately for Green Valley Creek property owners, they do not have tax dollars to pay for damage that Summerhill Homes will cause to their properties. Whose property rights are at stake here, Dan?

No problems, Dan? There are records of complaints of flooding/erosion along Green Valley Creek dating back since the 1960's!

Please don't admit you know nothing, Dan, then try to convince others of the merits of your baseless support for the ill-conceived SummerHill Homes' development.

Posted by [removed]
a resident of another community
on Apr 9, 2012 at 6:58 pm

Dear Editor,

Why does Danville's government choose to deliver what should be a LEGAL message through a talented journalist? Why does a talented legal authority, Maryann Cella, have to provide the reality of the legal position of Danville without any public response by government counsel?

Clearly, all in Danville government work for the people of Danville, and by impact, the surrounding region. Why doesn't Danville's government realize that we ask the questions from a position of expertise because they work for us and we don't work for them?

Do we actually need legal proceedings to force Danville Government council and counsel to step forward in consideration of the legal violations that exist in this and previous approvals?

Posted by Dan Reynolds
a resident of Diablo
on Apr 10, 2012 at 4:59 pm

To "Maryann": you are a poor advocate for your cause, with your condescending attitude towards someone who is on the fence and was just making observations. Hopefully everyone will see through your true motives. I have much more faith in our town government than in you and your group's efforts to distort and confuse the truth.

Posted by John Tanner
a resident of Danville
on Apr 11, 2012 at 10:21 am

This seems consistent with subdivision proposals by developers that want to minimize their upfront approval costs, make their efforts easier by avoiding EIR's and votes, and propose far more homes they desire, in the hopes they will skate through with something that will make money.

It also seems like town, city and county staff and elected officials want to let approve developer applications as favors to election donating developers and their paid henchmen (think Tom Koch who represents developers and is trying to bust the county Urban Limit Lines anywhere he can).

It is modern day graft at its finest. Perhaps Save Our Creek should request a FOI act disclosure of the relevant elected officials on the Danville Town Council to reveal who has donated to their campaigns.

The town should really do what is right and tell the developer right now it would be fair and faster to follow the rules and amend the general plan and go to a vote. If this then is not a feasible path, the developer should go back to the drawing board and follow the longer path of changing the land use designation properly and legally.

Trust in your instincts, the land with 80 habitable structures is worth far more to the person holding the deed, than a grazing lease on the same land. It is a stacked deck; buy off, propose, rubberstamp and build.

If anyone is on the fence with regard to supporting this, consider the rain water impacts to the creek that the runoff from the asphalt and concrete areas and the roof systems will have on the creek. Perhaps the developer should be required to build a rain water collection system that cleans the water, stores and and then re-uses it for landscaping in the sunny months. A zero discharge system. It is a known fact that many floods are caused by asphalt runoff.

Posted by Maryann Cella
a resident of Los Cerros Middle School
on Apr 11, 2012 at 11:44 am

To Dan Reynolds: Our Save Our Creek group has neither distorted nor confused the truth in our investigation of SummerHill's proposed development. All of the statements we have made to the public have been purely factual, except our opinion that the severe impacts from such a development, and Danville's illegal rejection of the applicability of Measure S to the development, are cause for opposing it.

Property Rights advocates is another way of saying that people feel they can do whatever they want on their property, no matter the impact on anyone else. Sound familiar? S E L F I S H and G R E E D Y. Thank the "people" that we have a democracy and not a capitalistocracy. As it should say on our green currency, "In The People We Trust"
Or as a PRA would say In MONEY We Trust... When in doubt donate!

Maybe the Danville spokesperson can chime in and inform all of us of how we obtain the campaign donor lists. That would be helpful.

Now if the developer would just trust the people. If it is such an excellent idea to develop this land and it is a great deal for the community, ie dense housing and donated open space, then let the people decide in a vote. You will get to tell your side of the story to the entire community and we will vote it up or down. Make it a great deal for all of us, take the time to explain it to the town, make your arguments, go to a vote and you will be better off. I point you to the Gateway project in Orinda that took years upon years upon years to get off the ground. Go quick to the vote and you will get your answer faster and cheaper than you will by hiring lawyers and lobbyists.

To the town of Danville, you should be ashamed of not fairly representing the General Plan provisions and trying to slip a fast one by your constituencies. You knew for a fact that this slight of hand was a major gray area. What, were you worried the developer would litigate if you stood your ground on the proper way to rezone / develop agriculturally designate land? Guess what, you now have the community hiring lawyers preparing for litigation if it comes to that.
Just whose side are you on? Hire your own lawyers! Why not? Litigate against the community you are supposed to represent.

How about naming one precedent, in the entire 58 county state of California, that backs up your case. You know this is not the first time that this has come up. Danville is not the first city to have a developer try to rezone agricultural designated land to higher densities.

Both the town and the developer should rethink their strategy. This group is going to fight this tooth and nail, and like I said earlier, if the merits of the project are so good, take it to the vote. And don't short change the draft EIR impacts on 1) schools, 2) traffic and 3) stream / water. It is a classic arena to gloss over these areas, and from what I can tell, glossing over them will lead to prolonging your cause by years.

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